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Abid Khan v. Iii-A.D.J. - WRIT - C No. 3334 of 1983  RD-AH 1 (1 January 2005)
CIVIL MISC. WRIT PETITION NO.3334 OF 1983
IIIrd Addl. District Judge, Meerut and
Hon'ble Bharati Sapru, J.
List is revised. Learned counsel for the petitioner is present in the Court. Learned counsel for the respondent Shri M.A.Qadeer is also present. This is an old matter. I am hearing the matter finally.
The present petition has been filed against a judgment dated 9.12.1982. The judgment is a revisional order arising out of the proceedings under Section 28 of the Specific Relief Act, 1963.
The facts of the case are that the petitioner Iliyas purchased plot No.187 situated at village Jayee Pargana Kithaur, District Meerut from one Nathu, son of Aman who was Bhoomidar of the said land. Nathu, s/o Aman executed an agreement to sell the aforesaid land in favour of the petitioner for Rs.900/- out of which, Rs.400/- was paid in advance. Another Nathu, son of Ziledar - respondent No.2 was a witness of the agreement between Iliyas and Nathu, s/o Aman dated 23.8.1966. The petitioner was also put in the possession of the said plot of land on the basis of the agreement dated 23.8.66. Subsequently, Nathu, s/o Ziledar, who was a witness to the agreement of sale dated 23.8.66 got executed another agreement to sale with regard to the same plot No.187 at village Jayee pargana Kithaur, District Meerut from Nathu, s/o Aman. This agreement to sale was made on 26.9.66. Subsequent to this, a sale deed was also executed between the respondent No.2 Nathu, s/o Ziledar and Nathu, s/o Aman.
The petitioner, being aggrieved by the subsequent agreement to sale and the sale deed dated 4.4.67, filed on 1.1.1971 suit No.5 of 1971 before the Munsif, Meerut for specific performance of the agreement dated 23.8.1966 also impleading Nazir Khan who was the heir and successor of late Nathu, from whom the petitioner has purchased the said land, by way of an agreement to sale.
The suit was contested by the respondent No.2 on the ground that the agreement of the petitioner Iliyas with Nathu, s/o Aman did not bear his signature and that he was a bonafide purchaser for valuable, and as such, the agreement to sale dated 23.8.66 was not recognized by him.
On 4.3.78 Suit No.5 of 1971 was decreed in favour of the petitioner and a direction was issued that the sale deed be executed in favour of the petitioner. In the operative portion of the judgment, the Trial Court did not give any specific direction directing the petitioner to pay balance of the sale consideration to the respondent No.2
Learned Trial Court recorded that in fact Nathu, s/o Ziledar had been a witness to the agreement to sale dated 23.8.66 and, therefore, he had full knowledge that the plot had already been sold by way of an agreement on 23.8.66.
Against the judgment dated 4.3.78, the respondent No.2 filed an appeal being Civil Appeal No.131 of 1978 which was dismissed by the First Civil Judge on 23.5.79.
The judgment passed in appeal also became final, as respondent No.2 did not file any second appeal.
Thereafter, the petitioner filed an execution application to execute the decree, which was registered as execution case No.4 of 1981.
The respondent No.2 filed an application under Section 28 of the Specific Relief act to rescind the contract on the ground that the petitioner has not deposited the balance of the sale consideration under agreement dated 23.8.1966. Section 28(1) of the Specific Relief Act reads as under.:-
" Where in any suit a decree for specific performance of a contract for the sale of lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vender or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require."
The petitioner filed an objection to the said application under Section 28 and stated that the decree passed by the Court below in suit No.5 of 1971 contained a direction that the decree be executed within a period of three months. The direction in the said judgment was to the respondent. The Trial Court judgment did not contain any direction with regard to the payment of the full amount by the petitioner. In the objection filed by the petitioner in the proceedings under Section 28, it has been stated in paragraph 12 of the said objections that full consideration of the agreement to sale of an amount of Rs.500/- has already been paid at the time when the application was moved. The exact date, however, has not been revealed.
On 12.2.1982 the Munsif, Meerut dismissed the application filed by the respondent No.2 under Section 28 of the Specific Relief Act, 1963. Against the order dated 12.2.1982, the respondent No.2 filed Revision No.93 of 1982 and the Revision was decided in favour of the respondent No.2. It is against this revisional order, which the petitioner has filed the present petition.
Learned counsel for the petitioner has made three submissions. :-
i) The respondent No.2 was the subsequent purchaser and, therefore, he could not maintain application under Section 28 of the Specific Relief Act as he, being the subsequent purchaser was not entitled to get the money.
ii) It is the discretion of the Court to rescind the contract and no revision could be maintainable against the order passed by the Trial Court under Section 28 of the Specific Relief Act.
iii) As no time had been prescribed by the judgment of the Trial Court to make payment of the balance amount, the provisions of Section 28 were not attracted in the present case.
In support of his contentions, the learned
counsel for the petitioner relied on a decision of the Hon'ble Supreme Court as reported in (1954)S.C.R.360 Lala Durga Prasad and another Vs. Lala Deep Chand and others in which the Hon'ble Supreme Court has held that in a suit specific performance, it would not be right to lay down that in every case the balance purchase money should be paid to the subsequent transferee and in fact the normal rule would be to direct the money to be paid to the vendor.
I have heard learned counsel for the respondent also, who states that the revisional order is correct because the Trial Court had directed that the decree be executed within a period of three months and, therefore, it was implied therein that the balance sale consideration should also have been paid within a period of three months. Learned counsel for the petitioner has replied to this and has stated that the observations made by the revisional court in this regard are not correct because the direction by the judgment of the Trial Court was to execute the sale deed within three months and there was no direction to pay the balance consideration to the respondent No.2 who was the transferee. Learned counsel for the petitioner has also contended that when he filed his application for execution, it was within the time on 3.1.81 as the period for filing
the execution application is 12 years.
I have heard both the parties at length and have examined the entire record.
The admitted position, which is revealed, is that respondent No.2 was allegedly the subsequent transferee. It has been recorded by the Trial Court that he was not the bonafide purchaser for filing because respondent No.2 was the signatory and witness to the agreement of sale dated 23.8.66. Therefore, he had full knowledge of the first transaction of sale, which had taken place between the petitioner and Nathu, son of Aman.
Having recorded these findings, the Trial Court rightly came to the conclusion that the sale deed was to be executed between the petitioner and Nathu, son of Aman.
I have also carefully perused the judgment and direction of the Trial Court dated 4.3.78, from which, it is clear that a direction was issued to the respondent No.2 to execute the sale deed within a period of three months and it contained no direction to pay the balance money within a period of three months to the respondent No.2 who in any case was the subsequent transferee. The judgment of the Trial Court dated 4.3.78 has, however, become final, by way of order dated 23.5.79 as the respondent No.2 did not file any appeal against the said judgment.
I have already quoted Section 28 above. Section 28 of the Specific Relief Act states that wherein any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money, then in some case where a default is made by the party, the contract can be rescinded. In the present case, no such time was provided by the judgment of the Trial Court. The Trial Court while hearing the application under Section 28 of the Specific Relief Act has, therefore, rightly come to the conclusion that no time had been prescribed in the judgment dated 4.3.78, which had become final. The impugned revisional judgment was passed on the basis of an implication, stated that because there was a direction contained in the said judgment to execute the sale deed within three months, the purchase money also should have been paid within that period. In fact, the purchase money was paid as has been stated in paragraph-12 of the objection itself, on the date when application was made. The burden had been placed on the respondent No.2 to execute the sale deed. But no correlating burden had been placed on the petitioner to deposit the money with the subsequent transferee.
The Revisional Court has, therefore, wrongly rescinded the contract on the basis of an implication, which was not there in actual terms. The contentions as raised by the petitioner are well founded. This Court accepts his submissions. Section 28 of the Specific Relief Act specifically talk of the time prescribed in making the payment. There was none in the present case as the facts have been revealed. Hon'ble Supreme Court has also stated that in such a case, it would not be right that a subsequent transferee be paid the consideration.
The revisional judgment and order dated 9.12.82 is hereby set aside and the judgment and order of the Trial Court dated 12.2.82 is hereby confirmed.
The writ petition is allowed with no costs.
Dated : 18.11.05
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